Court No. - 16
Case :- WRIT - A No. - 23007 of 2018 Petitioner :- Arvind Mohan Jha Respondent :- Union Of India, Min. Of Textiles, New Delhi And 2 Others Counsel for Petitioner :- Rahul Chaudhary Counsel for Respondent :- A.S.G.I.
Hon'ble Ajay Bhanot,J.
Heard Sri Rahul Chaudhary, learned counsel for the petitioner and Sri Sanjay Kumar Om, learned counsel for the respondents No.1 to 3.
The petitioner has superannuated from service on 06.01.2011. Learned counsel for the petitioner submits that the terminal dues of the petitioner have not been paid.
Sri Sanjay Kumar Om, learned counsel for the respondents No.1 to 3 submits that the petitioner has been illegally retaining his official accommodation after his superannuation in the year 2011. The petitioner is liable to pay penal rent on account of illegal retention of official accommodation.
Learned counsel for the petitioner does not dispute the fact that even after his retirement the petitioner continues to retain the official accommodation. He has not been able to show any lawful base for retention of such accommodation. The petitioner cannot hold the respondents to ransom for some of his disputed claims by retaining the official accommodation. The recovery of the dues from gratuity amount has been upheld by the Hon'ble Supreme Court in the case of Secretary, ONGC Ltd. and another Vs. V.U.Warrier, reported at (2005) 5 SCC 245.
Learned counsel for the respondents submits that the rules provide for recovery of amounts due from an employee from the retiral benefits including gratuity.
The Hon'ble Supreme Court in the case of Secretary ONGC Ltd (supra) set its face against the employees who cause loss to the organization and upheld the claims of the employer for recovery of such loss caused from the retiral dues including gratuity payable to such defaulting employees. The Hon'ble Supreme Court in para 17 and 20 of the said judgement held thus:
"17. Having heard the learned counsel for the parties, in our opinion, the appeals deserve to be allowed. It is no doubt true that pensionary benefits, such as gratuity, cannot be said to be 'bounty'. Ordinarily, therefore, payment of benefit of gratuity cannot be withheld by an employer. In the instant case, however, it is the specific case of the Commission that the Commission is having a statutory status. In exercise of statutory powers under Section 32(1) of the Act, regulations known as the Oil and Natural Gas Commission (Death. Retirement and Terminal Gratuity) Regulations, 1969 have been framed by the Commission. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi and Anr. MANU/SC/0667/1975 : (1975)ILLJ399SC the Constitution Bench of this Court held that regulations framed by the Commission under Section 32 of the Oil and Natural Gas Commission Act ,1959 are statutory in nature and they are enforceable in a court of law. They provide for eligibility of grant of gratuity, extent of gratuity, etc.
Regulation 5 deals with recovery of dues of the Commission and reads thus :
"Recovery of Dues :
The appointing authority, or any other authority empowered by the Commission in this behalf shall have the right to make recovery of Commission's dues before the payment of the death-cum retirement gratuity due in respect of an officer even without obtaining his consent or without obtaining the consent of the members of his family in the case of the deceased officer, as the case may be."
The above regulation leaves no room of doubt that the Commission has right to effect recovery of its dues from any officer without his consent from gratuity. In the present case admittedly the respondent retired after office hours of February 28, 1990. According to the Commission, he could be allowed four months' time to occupy the quarter which was granted to him. His prayer for extension was considered and rejected stating that it would not be possible for the Commission to accept the prayer in view of several officers waiting for quarters. He was also informed that if he would not vacate the quarter, penal rent as per the policy of the Commission would be recovered from him. But the respondent did not vacate the quarter. It was only after eviction proceedings were initiated that he vacated the quarter on May 16, 1991. In the circumstances, in our opinion, it cannot be said that the action of the Commission was arbitrary, unlawful or unreasonable. It also cannot be said that the Commission had no right to withhold gratuity by deducting the amount which is found 'due' to Commission and payable by the respondent towards penal charges for unauthorized occupation of the quarter for the period between July 1, 1990 and May 15, 1991.
20. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer [vide Garment Cleaning Works v. Its Workmen MANU/SC/0231/1961 : (1961)ILLJ513SC]. In Calcutta Insurance Co. Ltd. v. Their Workmen MANU/SC/0212/1967 : (1967)IILLJ1SC , after considering earlier decisions, this Court observed that "long and meritorious service" must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under me general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workers - a case in which it would be extremely difficult to assess the financial loss to the employer."
At this stage, learned counsel for the petitioner undertakes to vacate the official premises within a period of four months.
In case the aforesaid undertaking is violated and peaceful and vacant possession is not made over to the respondent authorities, it is open to the respondents authorities to seek aid of the law enforcement authorities and evict the petitioner by use of minimum force. It shall also be open to the respondents to invoke other legal remedies against the petitioner for violation of the undertaking to the Court. The respondents shall release the gratuity amount to the petitioner and other retiral dues which are undisputed and to which the petitioner is entitled in the understanding of the respondents within a period of one week from the date the petitioner hands over the peaceful and vacant possession of the residential accommodation to the respondents. The penal rent shall be deducted from the gratuity amount as per the rules.
Learned counsel for the petitioner further submits that certain other dues like revised pay arrears and leave encashment admissible to the petitioner have not been paid. The petitioner has already made a representation in this regard.
Sri Sanjay Kumar Om, learned counsel for the respondents submits that the aforesaid facts which need to be verified from the competent authority.
In such view of the matter, the matter is remanded back to the respondent No.3. A writ of mandamus is issued to the respondent No.3 commanding him to decide the representation of the petitioner regarding his claim for arrears of revised pay and leave encashment within a period of three months from the date of receipt of a certified copy of this order along with a fresh copy of the representation. The gratuity amount shall be released after deduction of the penal amount.
With the aforesaid direction, the writ petition is finally disposed of.
Order Date :- 27.10.2018 Ashish Tripathi